Vehicle 'Chalking' Is A Fourth Amendment Search

A suit against the City of Saginaw and an officer in her personal capacity for “chalking” the plaintiff’s vehicle to issue her parking tickets, alleging a violation of the plaintiff’s Fourth Amendment rights, may proceed, the Sixth Circuit recently held.

City of Saginaw parking enforcement officers use chalk to mark tires of parked vehicles to track how long they have been parked. When the officers return to the car after the posted time for parking has passed, and if the chalk marks are still there, the officer issues a citation.

Between 2014 and 2017, officer Tabitha Hoskins “chalked” Alison Taylor’s tires and issued her citations on fifteen separate occasions. In April 2017, Taylor filed a §1983 action in federal court against the City of Saginaw and against Hoskins, in her individual capacity, alleging they violated her Fourth Amendment right for chalking her car without a warrant.

The District Court granted defendants’ motion to dismiss Taylor’s lawsuit. As rationale, the District Court held that while defendants’ “chalking” constituted a Fourth Amendment search, the search was reasonable because there is a lesser expectation of privacy in automobiles and the search was subject to the “community caretaker” exception to the warrant requirement. Taylor appealed the dismissal to the U.S. Court of Appeals for the Sixth Circuit.

The Sixth Circuit agreed that chalking is a search for Fourth Amendment purposes, but disagreed with the remainder of the District Court’s rationale for dismissing Taylor’s case.

In 2012, the Supreme Court revisited the “property-based” approach to Fourth Amendment searches in United States v. Jones. In that case, the court held the government’s surreptitious attachment of a GPS device to a car to track its movements constituted a Fourth Amendment search. Under Jones, the Sixth Circuit held, when government invasions of privacy are accompanied by physical intrusions, a search occurs when the government: (1) trespasses upon a constitutionally protected area, (2) to obtain information.

As address whether the first prong of a “property-based” search occurred, the Sixth Circuit adopted the common-law definition of trespass as “an act which brings about intended physical contact with a chattel in the possession of another.” Applied to Taylor’s case, the court held there was a trespass “because the City made intentional physical contact with Taylor’s vehicle.”

The appeals court then addressed the second prong of the analysis, to determine whether the trespass was “conjoined with an attempt to find something or to obtain information.” Because neither party disputed that the City used the chalk marks for the purpose of identifying vehicles that have been parked in the same location for a certain period of time to then issue citations, the court held “the chalk marks clearly provided information to Hoskins.”

Having concluded that a Fourth Amendment search had occurred, the Sixth Circuit then addressed the defendants’ defenses. As to the reasonableness of the search, the court held there is only a diminished expectation of privacy in the automobile exception to the warrant requirement where there is “probable cause to believe that the vehicle contains evidence of a crime.” Because there was no such probable cause in Taylor’s case, the court held the automobile exception inapplicable.

Next addressing the “community caretaker” exception, the court held the exception applies only when “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” The exception is applied “in narrow instances when public safety is at risk.” Because the defendants made no showing that Taylor’s parking was a public safety risk, the court held the “community caretaker” exception did not apply.

The Sixth Circuit thus reversed the dismissal of Taylor’s case and remanded the case to proceed before the District Court.

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